12 N.J. Eq. 142 | New York Court of Chancery | 1858
The foundation of this suit is a parol agreement, which is alleged to have been made by and between the defendant, John H. Vreeland, and Nicholas Vanduyne, since deceased, the father of the complainant. There was a general demurrer to the bill, which, after full argument, was overruled. The bill has been answered by all the defendants, and proofs have been taken, and the cause very ably and elaborately argued by counsel, on both sides, on its merits. I -would refer to the opinion delivered in overruling the demurrer for a full statement of the complainant’s case, and for the views of the court in relation to several interesting questions, which are necessarily involved in the decision of the cause. The same questions have been reargued on this second argument. After a re-examination, I see no
The case in Beavan was very like the present in all its important features. There was an agreement made between the father of the complainant and one Dean, of whose will the defendants were executors, by which the said Dean agreed, in consideration of ¿£100 paid him by the father, to adopt the complainant, and bring him up as his son; and that Dean’s heirs and executors should convey and assign the real and personal estate of which Dean should die seized and possessed, in such manner that the same should remain to the use of any widow of Dean for her life, and after her death to the use of the complainant absolutely, if Dean should have no child of his own; but if Dean should have any such child or children, then to the complainant and the child or children of Dean equally. Dean died without issue leaving a will, by which he disposed of his property without any regard to the agreement. The want of mutuality; that the complainant, not being a contracting party to the agreement, could not sue upon it; that this was a contract contrary to the policy of the law, for thereby a parent vpas contracting for the relinquishment of his child, the father thus depriving his son of that parental care which by the law of nature he was entitled to, and relieving himself from those moral duties and obligations which a parent owed to his child; and that the contract was vague, the circumstances doubtful, and the bargain most improvident and unreasonable, as depriving Dean of the possi
I will add nothing further upon these questions to what has already been said in the opinion to which reference has been made, and which was the foundation for the order overruling the demurrer, but will proceed to examine the case in the new aspect in which it is now presented by the additional pleadings and the proofs.
First, has the agreement been proved ? Second, has the defendant, Yreeland, offered any satisfactory reason why he should not perform it ? Third, is the complainant entitled now to any relief?
As it was very earnestly argued by counsel, that the agreement, as alleged in the bill, has not been proved (if
The agreement stated in the bill, and the circumstances under which it was made, are as follows: that it was made about thirty-three years prior to the filing of the bill; that the complainant’s mother was the sister of the former wife of the defendant, Yreeland; that the said Yreeland and his said wife had no children; that as soon as the complainant was born, Yreeland and his wife requested the complainant’s father and mother to let them take the complainant, and permit them to adopt and keep him as their son; and as an inducement for them to do so, they promised his parents to treat the complainant as their own son, and that all the property they had should be given to the complainant, so that it should belong to him at the death of Yreeland and his wife. It is said that the agreement, as stated, is indefinite and uncertain, and that, if proved in the very language it is stated, it would be difficult to put a construction upon it. I do not think so. The agreement was this — Yreeland and his wife were to adopt the boy. He was to be given up to them, and to be under their management and control, and when they died he was to have their property. It is true the agreement does not state whether the property should be secured to the complainant by deed, so that he might enjoy it when they died, or whether it should be left him by will. It was argued that it would make a very material
It does appear to me that this is a substantial admission of the agreement, as it is alleged by the bill. "Wherein does the defendant himself say it differs ? He says he did not promise or agree to give him all the property which he then owned, or which he might own at his death. The bill does not charge that he agreed to give the complainant all the property which he then owned, but44 that all the property they had should be given to the complainant, so that it would belong to him when they died.” The words 44 they had” are synonymous with the words 44 they might acquire.” This, in fact, was nothing more than an agreement that the complainant should be his heir at law. He assured the father of the complainant, not only that he would treat him as a child during his life, but would,
But the answer further admits, that the complainant lived with him in the expectation of having his property, and that he told the complainant, at different times, that it was his intention to make the complainant his heir and to make a disposition of his property in the complainant’s favor; and there are other admissions in the answer further corroborative of the agreement, as it is set out in the bill.
The proofs, in connection with the answei’, establish the agreement as the complainant alleges it to have been. The complainant’s mother proved it. The conduct of the complainant, for more than twenty years, was all in consonance with it. lie made several wills, and by the disposition of his property recognised the agreement. He admitted it more than once to his neighbors; and he induced, by his repeated assurances, the complainant to act upon it, and to spend the best part of his life in the expectation of its faithful fulfilment. It is alleged that the agreement was made with Mrs. Vreeland as well as with her husband, and that she understood and carried it out j ust as the bill states it to have been. And the answer admits this. She always recognised the complainant as her son. She died after he arrived at the age of twenty-one years. She made a will leaving the complainant all her property, which, at her death, he took possession of with the defendant’s consent, and has enjoyed it ever since. It is true the agreement was not legally binding
But this is a parol agreement, and is within the provisions of the statute of frauds and perjuries. It is an agreement which is not to be performed within the space of one year after the making thereof. The defendant, in his answer, claims the benefit of the statute. It is now well settled, that if the defendant, by his answer, admits the parol agreement, and insists upon the benefit of the statute, he is fully entitled to it, notwithstanding such admission. But if he admits the parol agreement, without insisting on the statute, the court will decree a specific performance, upon the ground, that the defendant has thereby renounced the benefit of the statute. Story’s Eq. P. § 763. If the defendant, by his answer, denies the parol agreement, he need not insist upon the statute as a bar. The Ontario Bank v. Root, 3 Paige’s R. 478.
In this case, part performance is set up in avoidance of the statute. I think the answer admits, and the evidence shows a substantial performance of the agreement on the complainant’s part, as well as such part performance on the part of the defendant himself as will take the case out of the operation of the statute. There has been such a performance on both sides as puts the complainant in a situation which is a fraud upon him, unless the agreement is fully performed.
In pursuance of the agreement, the defendant and his wife took the complainant, when but a few weeks old, and had him baptized, calling him by the defendant’s own name, and standing for him; when he was a year old, they took him from the care and protection of his parents to their own home. They adopted him, and
The remaining question is — is the complainant entitled now to any relief, and if he is, to what relief? This involves the question of the bona fides of the sale to Brickell, and whether Brickell is a bona fide purchaser without notice. The defendant, Vreeland, had a perfect right to dispose of the property as he pleased, provided he did not make a disposition of it to take effect after his death, which would have been a fraud in law, or constructive fraud upon the agreement, whether he intended it as a fraud or not, or a disposition of it, for the sole purpose of defrauding the complainant, and depriving him of the benefit of his agreement, which would have been an actual and positive fraud. Fortescue v. Hannah, 19 Ves. 66.
After a careful examination of this part of the case, the conviction is produced upon my mind that there was actual fraud in this transaction, and that it was resorted to by the parties for the purpose of defrauding the complainant, and of placing the property in such a position that he could derive no benefit from it after the death of Vreeland. The transaction, upon the face of it, is an extraordinary one, and is calculated to awaken the suspicion that the parties to it were actuated by motives other than are expressed upon the face of it. In 1849, the first wife of the
Brickell is not a bona fide purchaser without notice. He does not stand in a position to claim the benefits of such a purchaser. He has not paid the purchase money. But there is proof enough to show he had notice of the complainant’s rights. He admits Vreeland told him that he had adopted the complainant, and of the difficulties between them. He denies any knowledge of the agreement between the complainant’s father and Vreeland, but he does not deny a knowledge of the facts from which some agreement might be inferred. His answer is contradicted. The old colored man and another witness told him of the complainant’s claim. The terms upon which the complainant had been brought up were of public notoriety. He admits he had heard of some difficulty about the property before he commenced building, but says he
Having reached the conclusion that the agreement has been proved; that by reason of its part performance it is not within the statute of frauds; that the defendant,
The bill is not for specific performance. There can be no such thing as a specific performance in the case. The complainant is not novj entitled to the enjoyment of the property, nor is it possible to ascertain to what part he will be entitled. He, by the agreement, is only entitled to such part of it as the defendant Vreeland may leave at his death. He may exhaust it all during his lifetime. But the complainant does not ask the court to give him the property. All he asks is that the court may protect him against the consequences of a fraud upon his rights, which will follow from the acts of the defendant, unless the court interferes for his protection. He alleges that he had an agreement with Vreeland respecting this property, and that Vreeland and Brickell have made a disposition of the property between them to defraud him of Ms rights under that agreement. He does not ask for any redress for that wrong, but that the court will protect him against future probable injury to his rights, which may justly be anticipated from the fraud the defendants have already committed. If Vreeland was dead, the complainant could now ask the court to declare the conveyance to Brickell a fraud, and to compel him to convey the property upon such terms as would be equitable. This, I think, properly comes under the denomination of bills quia timet. If this court does not interfere now for the protection of the complainant, and secure this property at the death of Vreeland, it may have passed into the hands of a bona fide purchaser, and the complainant then be remediless. A bill quia timet is to accomplish the ends of precautionary justice. The party seeks the aid of a court of equity because he fears some future probable injury to his rights or interests. They are applied to pre
Under articles executed on the marriage of Philip Cook, the plaintiff, in case she survived Philip Cook, claimed a contingent interest in two several sums of £100, each, the one in South Sea annuities, the other due by a promissory note of J. B., both which were specifically appointed for payment of the plaintiff in that event. The bill was upon the principle quia timet; for that, as the defendant had aliened, or threatened to alien those sums, there might be nothing to answer that interest, which might become beneficial to the plaintiff; and the defendant admitted he had sold out £100. The master of the rolls, in deciding the case, says — Here he has directly broke his covenant; and therefore it would be a rash action to trust to the event of things by the plaintiff’s taking a chance when this £200 is gone; therefore, some way or other, the plaintiff is entitled to relief. Flight v. Cook, 2 Ves. R. 620, case 213.
I have thought much as to what particular relief can be given in this case. I have not been deterred from casting about to find some relief, from the fact that no precedent can be found as a guide for the particulars of the decree. We have principles, and we must apply them to the ease as it is presented. A decree merely enjoining the defendant, Brickell, from aliening the land,
It appears to me such a decree is equitable, and respects the rights of all parties. Vreeland cannot complain of it. The court does not interfere with his right to dispose of his property as he pleased, except so far as it is a fraud upon his agreement with the complainant. By his conveyance to Brickell, he has deprived himself of all control over the property, except so far as he has retained an interest in it to secure his agreement with Brickell. The decree will not interfere with the enjoyment of it, as far as he has secured it for himself. As far as Brickell is concerned, it is admitted, and there is no doubt of its sufficiency to remunerate him for any expenditures he may incur in the support of all the persons entitled to support up to the time of Vreeland’s death. If